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DOCKET NO. AP-05-067
FRIENDS OF MERE POINT
and ROBERT HEALING
Plaintiffs
ORDER ON PLAINTIFFS'
v. 80C APPEAL
MAINE BOARD OF
ENVIRONMENTAL
PROTECTION
BEFORE THE COURT
Before the court is Friends of Mere Point and Robert Healing's
("Petitioners") appeal, pursuant to M.R.Civ.P. 80C, of the State of Maine Board of
Environmental Protection's ("BEP") August 11, 2005 approval of the Maine
Department of Inland Fisheries and Wildlife's ("IF&WH)application to construct
a public boat launch on Mere Point Bay in the Town of Brunswick ("Town").
BACKGROUND
On May 23,2003, the IF&W applied for a permit to construct a public boat
launch consisting of a 110-foot long by 48-foot wide concrete boat ramp, 200 feet
of 8-foot wide floats anchored with pilings, a paved access drive, and a paved
parlung lot with 55 parlung spaces ("Boat Launch"). The Boat Launch is sited on
7.47 acres with approximately 400 feet of frontage on Mere Point Bay, near the
end of Mere Point Road. Petitioner Friends of Mere Point represents individual
citizens in the Brunswick area who own property abutting or in the vicinity of
the Boat Launch site. Petitioner Robert Healing resides in the vicinity of the Boat
Launch site.
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In November, 2003, Petitioners were granted intervenor status in the
IF&W1sapplication. They sought at that time to introduce evidence to the BEP of
the Boat Launch's traffic impacts on Mere Point Road. Petitioners asserted that
the BEP was required under Maine's Natural Resources Protection Act, 38
M.R.S.A. §§ 480-A et seq., ("NRPA") to take these traffic impacts into
consideration. The BEP denied Petitioners' offer of evidence in a November 25,
2003 procedural order, stating, "only impacts to the existing uses of the protected
natural resources" are relevant to NRPA requirements. This procedural order
was affirmed by the BEP on December 18, 2003, and it also denied an April 12,
2005 request by Petitioners to reopen the record to include Petitioners' evidence.
On appeal, Petitioners request an order vacating the BEP's August 11, 2005
approval of the Boat Launch, and remanding the matter to the BEP with
instructions to consider Petitioners' evidence of negative traffic impacts.
DISCUSSION
Mere Point is a coastal peninsula on the Atlantic ocean. The site of the
Boat Launch consists in part of coastal and freshwater wetlands identified under
the NPRA as "protected natural resources." The NRPA requires IF&W, as the
applicant for a permit involving bulldozing, filling, and construction of a
permanent structure on and over a protected natural resource to demonstrate,
inter alia, that "the activity will not unreasonably interfere with existing scenic,
aesthetic, recreational or navigational uses." 38 M.R.S.A. §fj480-C and 480-D(1).
Petitioners do not appear to dispute the adequacy of BEP's finding that
"the proposed project will not unreasonably interfere with existing scenic and
aesthetic uses of the on-site protected natural resources or the adjacent coastal
waters.. .". Record Tab 467, pp. 11-12 (hereinafter "R.T. - at " ) . Rather,
2
they argue that the BEP erred as a matter of law by construing g480-D(1) as
applicable only to on-site protected natural resources, coastal waters around the
site, and a 75-foot wide area adjacent to these areas. Petitioners submit that §
480-D(1) requires the BEP to find that the proposed activity will also not
unreasonably interfere with existing scenic, aesthetic and recreational uses in
areas, such as Mere Point Road, w h c h surround the site but are not themselves
protected natural resources.
Because of the BEP's professional and technical expertise, the court grants
deference to its-interpretation of § 480-D(1). See Kroeger v. Maine Department of
Environmental Protection, 2005 ME 50, 9 16, 870 A.2d 566, 571, Isis Development,
LLC v. Town of Wells, 2003 ME 149, ¶ 3, fn. 4, 836 A.2d 1285, 1286, fn.4. In
addition, the court gives NRPA a broad, liberal interpretation. See Kroeger, 2005
ME 50 at 9 16. 5 480-D(1) states only that an applicant must show that: "The
activity will not unreasonably interfere with existing, scenic, aesthetic,
recreational or navigational uses," without specifying the geographic scope of
the requirement. Petitioners assert that, here, the BEP construed 5 480-D(1) too
narrowly when it considered only impacts on the sites of protected natural
resource themselves, the coastal waters, and the immediate surrounding area.
-.l'hey ciaim that this interpretation of 480-D(i) is not only contrary to the
general rule of expansive interpretation of the NRPA, but also contrary to the
Department of Environmental Protection's ("DEP") own prior interpretation of
t h s section. See Kroeger, 2005 ME 50 at 99 14-16.
In Kroeger, the petitioner was denied a permit to build a dock from his
property out into Somes Sound. 2005 ME 50 at 9 1. In denying the permit for the
Petitioner's failure to meet 5 480-D(1), the DEP noted that Somes Sound, which
3
borders Acadia National Park and is the location of the only natural fjord on the
east coast of the United States, is an area of unique scenic beauty, and that the
proposed dock would interfere with t h s overall scenic beauty on the Sound. Id.
at ¶ ¶ 10 and 14. The court accepted the DEP's application of § 480-D(1), stating,
A -
"the Department has interpreted the statute and its own regulations to mean that
the general location of the proposed activity is at issue when considering
interference with existing scenic uses." I d , at ¶ 16. As a matter of general
interpretation, then, § 480-D(1) applies to areas outside of the immediate vicinity
of the protected natural resources over which the structure is proposed to be
built. See id. at ql 15.
In t h s case, the BEP stated as a reason for rejecting consideration of traffic
impacts on Mere Point Road that "the purpose of the NRPA.. . is to protect the
State's critical natural resources and their 'scenic beauty and . . . recreational,
cultural, historical and environmental values.' 38 M.R.S.A. C
j480-A." R.T. 467 at
11. The BEP appears to have based its current limited focus upon the area for
which use impacts would be considered on this general understanding. For its
part, the Town adds that "§ 480-D(l)'s silence as to the exact geographic scope of
the inquiry does not obligate the DEP to conduct a limitless inquiry."
Intervenor's Opposing Brief, p. 5.
In spite of the broad geographic scope of the BEP's § 480-D(1) review in
Kroeger, the scope of its review in this case is not inconsistent with that
undertaken in Kroeger. See 2005 ME 50 at ¶ 14. The BEP has interpreted fj480-
D(1) in relation to the overall purpose of the NRPA, i.e. protection of the scenic
beauty and recreational, cultural, historical and environmental value of critical
natural resources withn the state. See 38 M.R.S.A. 5 480-A. The Petitioners have
4
asserted that the anticipated traffic from the proposed launch will disturb
recreational uses along h4ere Point Road, but they did not meet the implicit
prerequisite for the BEP's consideration of such evidence, that the area they claim
will be impacted is a critical natural resource that the NRPA is designed to
protect. See Kuoeger, 2005 ME 50 at a[ 14. Somes Sound, and Acadia National
Park, the areas from which the BEP in Kroeger considered the scenic impacts of
Kroegerfs proposed dock, are critical natural resources. See id. Accordingly, the
BEPfs refusal to consider Petitioner's evidence was not in error.
The entry is:
Petitioners' 80C appeal is DENIED. The Board of Environmental
Protection's August 11, 2005 order is affirmed.
Dated at Portland, Maine this 2 ' jr'
day of .&. ,2006.
Justice, Superior court
Date Filed
Action
SEPT. W- 2 0 0 5
8 0 C APPEAL
CmBERLAND
County
Docket No.
pe AP-05-67
I
I
1
FRIENDS OF MERE POINT MAINE BOARD OF ENVIRONMENTAL PROTECT1 I
ROBERT HEALING
TOWN OF BRUNSWICK ( I n t e r v e n o r ) I
I
vs. I
I
Plaintiff's Attorney Defendant's Attorney
MATTHEW D MANAHAN ESQ CAROL B L A S I AAG
CATHERINE R CONNORS ESQ
6 STATE HOUSE STATION
ONE MONZMENT SQUARE
AUGUSTA ME: 0 4 3 3 3
PORTLmD YAINE 34131
( 2 0 7 ) 7 9 1 - 1 100
(BRUNSWICK)
JEFFREY THALER, ESQ.
PO BOX 9 7 2 9
PORTLAND, ME 0 4 1 0 4 - 0 5 2 9
Date of
Entry
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